Negligence – Suit alleges business negligently designed and maintained premises

Where a blind patron plausibly alleged that his injuries occurred because of the way the premises (the roadway and lighting) were designed and maintained, the business’s motion to dismiss was denied.

Background

Wesley Derby brought this personal injury action against Daleville Town Center Business Association Inc. when he was struck by a vehicle as he crossed the street in a designated pedestrian crosswalk. Derby claims that Daleville Town Center violated its duty to supply adequate lighting and signage to protect pedestrians within crosswalks on its premises. Daleville Town Center has filed a motion to dismiss.

Analysis

Derby alleges two causes of action: negligence (Count One) and negligence per se (Count Two). Under Virginia law, a claim for negligence per se does not create a separate cause of action from negligence, but “suppl[ies] a new standard for determining whether the defendants performed their common law duty of ordinary care.”

Although Derby styles Counts One and Two as separate causes of action, negligence per se is simply a doctrine by which one can show breach in a negligence action. As a result, the court considers the allegations in these counts as stating one substantive cause of action for negligence.

Whether Derby can rely on the doctrine of negligence per se to establish that Daleville Town Center breached any duty of care is reserved for summary judgment or trial. A Rule 12(b)(6) motion challenges whether Derby has plausibly alleged a claim and since the doctrine of negligence per se is not a separate claim, it is not a proper subject of a 12(b)(6) motion.

Duty

To establish a common-law negligence claim, a plaintiff must plead “the existence of a legal duty, violation of that duty, and proximate causation which results in injury.” Derby alleges that he was injured by Cox as he crossed Town Boulevard and that Daleville Town Center breached its duty to install appropriate signage and lighting in the area.

The issue on this motion to dismiss is whether Derby has plausibly alleged a duty of care that Daleville Town Center owed. Derby adequately alleges sufficient facts that he was a business invitee and that Daleville Town Center and its roadways were open to the public such that it had a duty of ordinary care to maintain the premises and roadways in a reasonably safe condition.

Daleville Town Center argues that it had no duty to protect Derby against the negligent action of a third-party such as Cox and that it had no duty to install lighting at the crosswalk. Daleville Town Center relies on the line of cases from the Virginia Supreme Court holding that “generally a person does not have a duty to protect another from the conduct of third persons.” An exception to this general rule lies where a “special relationship” exists between a defendant and the third person which imposes a duty to control the action of the third person or between the defendant and the plaintiff which gives rise to a right of protection.

But, Derby’s claim is not that Daleville Town Center owed a duty to prevent Cox from hitting him with his truck. Rather, Derby plausibly alleges that his injuries occurred because of the manner in which the premises (the roadway and lighting) were designed and maintained. Whether Daleville Town Center breached the duty of ordinary care by failing to install proper lights and signage is a question of fact to be decided on a more fulsome record than exists at the motion to dismiss stage of the case. Derby plausibly alleges that Daleville Town Center owed a duty of reasonable care.

Contributory negligence

Daleville Town Center argues that Derby’s claims must be dismissed because the dangerous condition, darkness, was open and obvious, and therefore Derby was contributorily negligent by crossing the street knowing that it was dark. Because Derby is blind, he is held to the standard of care of a reasonable blind person. For the purposes of a motion to dismiss, the allegations in the complaint do not establish as a matter of law that Derby acted unreasonably by crossing Town Center Road in a crosswalk along with a sighted person.

Defendant’s motion to dismiss granted in part, denied in part.

Derby v. Daleville Town Center Business Association, Inc., Case No. 7:26-cv-272, June 10, 2026. WDVA at Roanoke (Ballou). VLW 026-3-252. 8 pp.

Full-Text Opinion
VLW 026-3-252